Andhra HC (Pre-Telangana)
Maddula Girish Kumar And Anr., Minors ... vs The Commissioner Of Survey, ... on 26 June, 1992
Equivalent citations: 1993(1)ALT43
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER N.D. Patnaik, J.
1. This is a reference made under Section 57 of the Indian Stamp Act, by the Chief Controlling Revenue Authority and Commissioner of Survey, Settlements and Land Records, Hyderabad, regarding the stamp duty payable on two documents.
2. According to the statement of the case set-out by the Chief Controlling Revenue Authority, the following are the brief facts of the case.
3. Two identical documents dated 12th October, 1974 were executed by Smt. Maddula Prameela, who is the second wife of Sri Maddula Pandurangarao of Machilipatnam as guardian of her two minor sons Jaya Veera Venkata Durga Prakash and Girish Kumar-the petitioners herein, in favour of their father Maddula Panduranga Rao. The recitals of the documents are that Maddula Panduranga Rao had four daughters through his first wife and in order to see that no disputes arise in future, the sons have received cash of Rs. 75,000/-, 990 grams of gold ornaments and 7000 grams of silver articles total value of Rs. 1,25,000/- and relinquished their shares in the joint family moveable and immovable properties. They were executed on stamp papers of Rs. 30/- each as release deeds. When the documents were presented for registration before the Joint Registrar of Machilipatnam, he impounded the documents as conveyance of sale and referred the matter to the District Registrar, who treated the documents as sale for Rs. 1,25,000/- each, chargeable with stamp duty of Rs. 6,345/-and penalty of Rs. 1,000/-each. Thereupon, the executants preferred revisions before the Commissioner of Land Revenue, who confirmed the order of the District Registrar treating the documents as conveyance of sale, but reduced the penalty of Rs. 1,000/- in each case and dismissed the revision petitions. The petitioners filed two writ petitions Nos. 3020 and 3021 of 1977 before this court. The High Court directed the board of Revenue to consider, whether this is a matter to be referred to the High Court under Section 57 of the Indian Stamp Act. Thereupon, the Chief Controlling Revenue Authority had considered the documents and referred the following points for the decisions of the High Court:
"Whether the documents styled as release deeds by the petitioners are sale deeds or not and whether appropriate action can be taken under Section 40 of the Indian Stamp Act as per the decision taken by the Commissioner of Land Revenue in his C.P.R. No. 449/77."
4. As stated above, the recitals in the two documents executed by Smt. Maddula Prameela as guardian of her two minor children in favour of their father are identical. In the said documents, the two minor sons have agreed to receive cash, some gold and silver worth Rs. 1,25,000/- and relinquished their rights both in the moveable and immovable property in favour of their father. The documents are styled as release deeds. But the registering authorities treated them as sale deeds.
5. Mr. Parabrahma Sastri, the learned counsel for the petitioners, has taken us through the various recitals in tlie documents and has contended that they are only release deeds. His contention is that Pandurangarao and his two minor sons constituted a Hindu Joint Family and when one of the coparceners relinquished his share in the Joint Family property in favour of the remaining member, the document only amounts to a release deed, but not a conveyance.
6. In Subbanna v. Balasubbareddi, 1945 (1) M.L.J. 140 a Full Bench of the Madras High Court, considered the question whether one member of a Hindu Joint Family consisting of several members can, irrespective of a partition of a family estate given his own interest therein to one of the other coparceners. The Full Bench considered the earlier decisions in Peddayya v. Ramalingam I.L.R. 11 Mad. 406 and Thangavelu Pillai v. Domiswami Pillai, 27 MLJ 272. The Full Bench considered the question whether the decisions in Peddayya v. Ramalingam and Thangavelu Pillai v. Doraiswami Pillai are good law, in view of the decision of the Privy Council in Venkapathi Raju v. Venkatanarasimha Raju, 71 MLJ 558. After referring to the decision in Venkapathi Raju v. Venkatanarasimha Raju, the Learned Judges observed as follows:-
"The relinquishment by one coparcener of his interest in the family estate in favour of the members of the coparcenary does not amount to an alienation; it merely amounts to an extinction of his right in favour of the others."
They agreed with the view expressed by the learned Editor of Mayne's Hindu Law, Tenth edition, at page 497, that the dicta in Peddayya v. Ramalingam and Thangavelu Pillai v. Doraiswami Pillai cannot be considered good law, especially after the decision of the Privy Council in Venkapathiraju v. Venkatanarasimha Raju. The Full Bench held that a member of a Hingu joint family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners, if they remain joint in estate. In such circumstances, he can relinquish his interest, but the relinquishment operates for the benefit of all the other members.
7. In Anjaneyulu v. Ramayya, a Full Bench of this Court held as follows:- "The relinquishment of a share by one of the coparceners in favour of the other members does not alter the status of the joint family. The releasor alone separates himself from the family while others continue as members of an undivided family. Mitakshara treated the estate of coparceners as held in entirety without recognition of shares and defined partition as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. The relinquishment by a coparcener does not require either the adjustment of diverse rights or the division of wealth in definite portions. It only results in the extinction of his rights in the family properties and his separation from the family. That being so, it cannot be predicated that a relinquishment of his interest by one of the coparceners in the family estate is tantamount to a partition of the joint family wealth. To put it differently a partition of the family properties involves definement of shares, whereas a release by a member of an undivided family does not require the ascertainment of shares of each of the members though the releasor separates himself. The separation of one member, who renounced his share, does not necessitate a distribution of the joint family property in definite portions. His renunciation merely extinguishes his interest in the estate but does not in any way affect the status of the remaining members quoad the family property."
The Full Bench relied on the decision of the Privy Council in Venkatapathi Raju v. Venkata Narasimha Raju, AIR 1936 P.C. 264, and the decision of the Supreme Court in Fukhmabai v. Laxminarayan, .
8. In the decision reported in Board of Revenue v. Murugesa, the Madras High Court had to consider the nature of a document executed by three persons, who were partners of a firm, relinquishing their rights in the property, in consideration of some amount received by them. It was observed by the Full Bench as follows:-
"The document proceeded on the footing that the five persons, namely, the three executants and the two persons in whose favour the instrument was executed, who were carrying on business of mat firm owned the property as co-owners, the executants being entitled to a three-fifths share and the other two being entitled to the remaining two-fifths share. It is not the case of any one that there was a division of the property by metes and bounds and in accordance with the said shares. In such circumstances, the document in and by which the co-owner purports to abandon or relinquish his claim to the share to which he would be entitled would be in the nature of a release within Article 44."
The learned Judges referred to the Full Bench decision in I.L.R. 18 Madras 233 "Reference under Stamp Act Section 46", in which it was held that a document executed by a Hindu son in favour of his father as representing the interest of the other members of the family, by which he relinquishes his rights over the property of the family in consideration of certain lands being allotted to him and certain debts incurred by him being paid. In that case, it was held that the instrument was a release deed. The Full Bench further held as follows:-
"We can see no difference in principle between such a document as between members of a coparcenary and the document in question, which is a document between co-owners."
The Full Bench followed the principle in ILR 18 Mad. 233 and applied to that case and held that it was only a document of release deed not a deed of dissolution of partnership.
9. In Board of Revenue v. V.R. Krishnaiah, a Special Bench of this Court had to consider the question whether a document executed by one Pasumarthi Seetharama Sastry in favour of Valiveti Ramakrishnaiah is a release deed or whether it is a deed of conveyance or sale. The relevant recitals in the document would show that both of them have purchased the property and one of them that is Seetharama Sastry had transferred to the other person his interest in the property, having received an amount of Rs. 9,475 /-. The Court held as follows:-
"The contents of the document, the intendment of the parties as can be seen from the document and the joint nature of acquisition by both the parties and the mode of enjoyment are also decisive of the fact that the document in question evidences a transaction by way of a release of the interest of the executant in favour of the releasee, the parties to the transaction being co-owners."
The Full Bench referred to the decision of the Madras High Court in "Reference under Section 47 of the Stamp Act" ILR 18 Madras 233. The principle enunciated therein was in relation to a Hindu joint family and a relinquishment by one coparcener in favour of the others in consideration of some benefit conferred on the relinquishing coparcener. Such an instrument was held to be a release deed. The principle decided in ILR 18 Madras 233 (F.B.) was applied by the later Full Bench i.e., in Board of Revenue v. Murugesa to the case of co-owners and a release by one or more of them in favour of the others for a stated consideration and it was held that the document in question was a release deed and that was neither a deed of dissolution of partnership nor a conveyance. The Special Bench of our High Court quoted with approval the decision of the Madras High Court in Board of Revenue v. Murugesa (F.B.) and held that the document in question was only a release deed, but not a deed of conveyance or sale.
10. The learned counsel for the petitioners pointed out that in order to avoid any future disputes between the petitioners and their step-sisters, the petitioners have taken some cash, gold etc., towards their share and relinquished their rights in all the family properties. Both the sons have simultaneously executed the documents in favour of their father, who is the only remaining member of the coparcenary. He has, therefore, contended that the documents are only release deeds, whereby the two coparceners have relinquished their rights in favour of the remaining coparcener, but it is not a conveyance.
11. The learned Govt. Pleader has referred to the definition of 'conveyance' in Section 2(10) of the Indian Stamp Act, which reads as follows:-
"'Conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I (or by schedule I-A as the case may be)."
Article 20 of Schedule I-A, which is applicable to Andhra Pradesh provides the stamp duty payable on conveyance. He has also pointed out that release is not defined in the Act, but Article 46 of Schedule I-A deals with the stamp duty payable on the instruments of release. He has referred to the decision of the Mysore High Court reported in Venkata Chalapathi v. State, AIR 1966 Mysore 323 wherein, a Full Bench of the Mysore High Court has taken a different view from the decision of the Madras High Court in . But, in a subsequent case reported in K. Azra Jabeen v. State, a Special Bench of the Karnataka High Court held that in view of the decisions of the Supreme Court referred to in that Judgment, the law laid down by the Mysore High Court in Venkata Chalapathi case AIR 1966 Mysore 323, cannot be considered to be good law. In that case also, a document was executed between two partners dividing the property of the firm. It was styled as a deed of partition and stamp duty was paid. When it was presented for registration, it was treated as conveyance and not a deed of partition. The Special Bench of the Karnataka High Court held as follows:-
"Therefore, whenever the partnership accounts are adjusted and properties are distributed in specie as between the partners either upon retirement of a partner or upon dissolution of a firm, and payment of cash is made to one partner, the instrument evidencing such distribution of the assets cannot be regarded as a conveyance. Having regard to these principles, the document in the present case, in our opinion, should only be regarded as a deed of dissolution of the partnership firm chargeable to duty under Item 40 of the Schedule to the Stamp Act."
12. The learned Govt. Pleader also referred to a decision of a Special Bench of our High Court in K. V. Subba Rao v. Dist. Registrar of Assurances, Guntur, . The - facts in that case are that the six petitioners and four others have jointly purchased two plots of lands and they were in enjoyment of the properties jointly as co-owners, but no partnership was entered into. Later, the four persons did not want to continue in business, executed four separate relinquishment deeds in favour of the remaining members, who wanted to continue in business after receiving consideration. The District Registrar treated the documents as conveyance deeds on sale. The learned Judges have referred to the Full Bench decision of the Madras High Court in Board of Revenue v. Murugesa, AIR 1955 page 641 and observed in para 30 of its Judgment as follows:-
"If the four co-owners out of the ten co-owners would have executed one * relinquishment deed, relinquishing their rights and interest in the property owned by all of them as in the case of Board of Revenue v. Murugesa (F.B.) such a document could have been construed to be a deed of release. In the case of Balwant Kaur v. State (SB) two daughters, who are co-owners, relinquished their rights and interest in favour of the remaining co-owners, namely mother and brother. But in the case on hand, each has executed separate I deed, though of course in favour of the remaining co-owners. The execution of separate relinquishment deed by individual co-owner relinquishing his share is not contemplated by the decision of the Full Bench of the Madras High Court in Board of Revenue v. Murugesa."
They, therefore, held that the documents cannot be construed to be deeds of release. They have also referred to the recitals in the documents, which clearly show the intention of the parties or the purpose for which and the circumstances under which the transactions came into existence. They and also the warranty i of title stated in the documents clearly establish that they are not deeds of release. The learned Judges also referred to the decision in Board of Revenue v. Ramakrishnaiah, , and distinguished it on the facts of that case.
They observed that the executant in that case i.e., Seetharama Sastry with a view to take Sanyasa Asramam, desired to give up the joint interest in the property as a co-owner in favour of the other co-owners. But, there is no warranty of title in that deed as recited in the documents. In the case before the learned Judges i.e., K. V. Subbarao v. District Registrar of Assurances, Guntur (6 supra) the learned Judges after taking into account the recitals in the document held that it is a deed of conveyance of sale, but not a deed of release and therefore, it is chargeable under Article 20 of the Stamp Act.
13. In the case on hand, the question is whether the two documents executed by the two coparceners in favour of the remaining coparcener are release deeds or deeds of conveyance. The preponderance of judicial opinion, which we have referred to above, is that it only comes under release, but not a conveyance. Therefore, we agree with the contention of the learned counsel for the petitioners that the documents dated 12th October, 1974 executed by the petitioners in favour of their father are only documents of release.
14. The reference is answered accordingly. No costs. Govt. Pleader's fee Rs. 500/-.